2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor. Tribe explains:
“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”
Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.
2010—The Woman’s National Democratic Club bestows its Eleanor Award (named for Eleanor Roosevelt) on Justice Ruth Bader Ginsburg. Ginsburg attends the award event run by the partisan political organization.
2020—Over a vigorous dissent by Judge Daniel Bress, a Ninth Circuit panel (in John Doe #1 v. Trump) denies the Trump administration’s motion for a stay pending appeal of a district-court order that bars the Trump administration from enforcing a presidential proclamation that restricts the entry of immigrants who, in the president’s judgment, will unduly burden the American health-care system. Judge Bress argues in his dissent that the majority (Chief Judge Sidney Thomas and Judge Marsha Berzon) “gravely errs in concluding that the Proclamation is likely unconstitutional” and errs further in allowing the district court’s nationwide injunction (which “in fact operates worldwide”) to remain in place.
In the actual decision on appeal seven months later, a Ninth Circuit panel majority will agree with Judge Bress that the presidential proclamation was lawful.